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HomeMy WebLinkAboutContract 30130 CITY SECRETARY CONTRACT NO, 3O!3O AGREEMENT This Agreement is made effective as of the day of , 2004, by and between Gotta Have DVD, Inc., a Texas corporation (hereinafter referred to as "GHDVD"), acting by and through its duly authorized representative and the City of Fort Worth, a home rule municipal corporation situated in Tarrant, Denton and Wise Counties, Texas (hereinafter referred to as "City") acting by and through its duly authorized Assistant City Manager, on the terms and conditions set forth below: WITNESSETH: WHEREAS, the City of Fort Worth owns and operates the Fort Worth Convention Center located at 1111 Houston Street, Fort Worth, Texas (the "FWCC" or "Premises"); WHEREAS, the Fort Worth Convention Center hosts a wide range of events, including conventions, conferences, corporate meetings, sporting events, concerts, trade shows, banquets, consumer shows and other events, all of which attract a large number of visitors to the Convention Center; WHEREAS, the City of Fort Worth desires to market certain local attractions and businesses to visitors of the Convention Center; WHEREAS, GHDVD has expertise in the design and production of DVD-based interactive marketing programs; WHEREAS, Fort Worth desires to utilize the services of GHDVD to market certain local attractions and businesses to visitors of the Convention Center through the use of interactive kiosks; "J 0 AGREEMENT PAGEI WHEREAS, GHDVD desires to place interactive kiosks in the Convention Center for the purpose of marketing and promoting local attractions and businesses to visitors of the Fort Worth Convention Center; WHEREAS, the City of Fort Worth does not desire to incur any startup expenses or development costs in utilizing interactive kiosks to promote local attractions and businesses to visitors of the Fort Worth Convention Center; WHEREAS, GHDVD is willing to undertake the start-up expenses and development costs and the risks associated therewith upon the conditions set forth herein. NOW, THEREFORE, for and in consideration of the premises and the mutual covenants hereinafter recited, the receipt and sufficiency of which are hereby acknowledged, the parties mutually agree as follows: Article I 1.01 Placement of Kiosks. City hereby grants GHDVD the exclusive right to place DVD- based interactive kiosks ("Kiosks"), as more particularly described by preliminary design and function in Exhibit "A," which is incorporated herein by reference, for the purpose of marketing certain local attractions and businesses to visitors of the Convention Center in and around the Convention Center (the "Convention Center Locations") in a number and at locations as set forth on Exhibit "B"which is incorporated herein by reference. 1.02 Permits and Approvals. GHDVD shall be responsible for obtaining any and all required permits, waivers and approvals that may be necessary for the placement of such Kiosks at the Convention Center Locations. 1.03 Compliance. GHDVD shall comply with all federal, state, and local laws, statutes including all ordinances, charter provisions, rules and regulations of the City of Fort Worth; including all rules, regulations and/or requirements of the City of Fort Worth Police and Fire Departments; in connection with this Agreement and use of said Premises and any other regulations of any municipal authority of the City of Fort Worth. GHDVD will not do or suffer to be done anything on said Premises during the terms of this Agreement in violation of any such laws, statutes, ordinances, rules, regulations, charter provisions, directives or requirements. If the City calls the attention of GHDVD to any such violation on the part of said GHDVD or any person er e" mitted r AGREEMENT �E2 y to said Premises by GHDVD, GHDVD will immediately desist from and correct such violation and/or vacate the Premises. 1.04 Maintenance and Repairs. GHDVD shall be responsible for all routine maintenance of the Kiosks. GHDVD shall perform all routine re-calibration of the Kiosks' touch screens and all other routine maintenance work. For any other maintenance or repairs that become necessary to the Kiosks, City agrees to contact GHDVD within twenty-four (24) hours of becoming aware of the need for such repair. GHDVD agrees to respond to such service calls within three (3) business days by arranging for the appropriate qualified technician to respond to the problem. GHDVD will be responsible for the labor charges and expenses including replacement parts and components necessary in making such repairs. GHDVD covenants and agrees that it shall take the FWCC as it finds it. GHDVD agrees that it has examined the FWCC prior to the execution of this Agreement and is satisfied with the physical condition of the premises for the purposes related to this Agreement. GHDVD shall restore and yield said FWCC, equipment, and all other properties belonging to the City back to the City at the termination of this Agreement in good or better condition as existed at the commencement of this Agreement and in which GHDVD found them. GHDVD will pay the costs of repairing (to its condition immediately preceding the occurrence of such damage) any damage which may be done to the Premises or any of the fixtures, or structures by any act of GHDVD or any of GHDVD's employees, agents, officers, or anyone visiting the Premises upon the invitation of GHDVD. The City and GHDVD shall mutually determine whether any damage has occurred, the amount of the damage, the reasonable costs of repairing the damage, and whether, under the terms of the Agreement, GHDVD is responsible. City shall be the sole judge of the quality of the maintenance and/or damage of the premises, fixtures, or structures by GHDVD. Any damage by GHDVD incident to the exercise of privileges herein granted shall be repaired or replaced by the GHDVD to the reasonable satisfaction of the City within thirty days of receipt of written notification from the City. City does not relinquish the right to control the management of the FWCC, or the right to enforce all necessary and proper rules for the management and operation of the same. City, through its Public Events Director, police and fire personnel and other designated representatives, has the right to enter and inspect the Kiosk and perform all activities necessary for the proper conduct and operation of the FWCC; provided this shall not authorize or empower City to direct the activities of the GHDVD or assume liability for GHDVD's activities. 1.05 Kiosk Supplies. City agrees to restock the Kiosks with supplies such as paper and ink cartridges as needed, at GHDVD's sole cost. GHDVD shall be responsible for providing all such supplies, at no cost to Fort Worth, within three (3) busine :ofreceipt of AGREEMENT ��v,.� notification from Fort Worth of the need for such supply items. The Kiosks' supplies will be stored within the Kiosk units. 1.06 FWCC Space. City shall provide the space for all FWCC locations in which the Kiosks will be located rent free and will be solely responsible for providing the customary and routine security currently provided at the FWCC. 1.07 Requirements of Kiosks Locations. City and GHDVD agree that the kiosks will be located in areas within the FWCC that currently provide access to electricity. City, at its sole discretion, may provide any other wiring necessary as requested by GHDVD. Any additional electrical or utility service required by GHDVD shall be furnished at the sole expense of the GHDVD. GHDVD must obtain written approval from the City of Fort Worth Public Events Director prior to placing any permanent utility improvements on the premises of the FWCC. Any permanent utility improvements shall become the property of the City. City shall be responsible for all utility costs associated with the operation of the Kiosks. 1.08 ADA and ABA. City shall have the responsibility of ensuring that the FWCC is compliant with any Americans With Disabilities Act of 1990 ("ADA") and Architectural Barriers Act ("ABA") requirements. GHDVD shall be responsible for meeting any ADA and ABA requirements for the design and construction of the Kiosk units. 1.09 Approval of Advertisers. City shall approve all advertisers and advertising programs to be included on the Kiosks. During the Feasibility Period (as defined below), GHDVD will provide monthly updates to City regarding sales progress and advertisers that have committed to GHDVD. Additionally, GHDVD will provide City with monthly outlines of the various elements to be incorporated into the Kiosks during the Feasibility Period. City agrees to provide GHDVD any comments or suggestions it has in response to the outline within seven (7) business days of its' receipt of same. 1.10 Notification to Conventioneers. City agrees to notify organizations and event planners that will be utilizing the FWCC of GHDVD's availability to produce interactive multi- media kiosks for their use while using the convention center. Article Il 2.01 Construction of Kiosks. GHDVD shall be responsible for the construction of the Kiosks at GHDVD's sole cost. Proposed plans for the Kiosks will be submitted to City prior to said construction for City's approval. City agrees to provide GHDVD its approval or disapproval of the submitted plans within seven (7) business days of its receipt of the plans. 2.02 Delivery of Kiosks. GHDVD shall be responsible for the delivery ks that operate and function properly upon delivery. Delivery shall be at a time arid]d e Fort Worth. AGREEMENT PAGE4 2.03 Advertising. GHDVD shall be responsible for selling all advertising and the production of the advertisements for use on the Kiosks. Such advertising shall be DVD video based advertising programs that may be selected by the visitor through an interactive menu selection process. The amount of such advertising to be included on the Kiosks together with when such advertising may be added to the Kiosks shall be determined in GHDVD's discretion applied in a commercially reasonable manner. 2.04 Public Service Information. GHDVD shall include on the Kiosks a reasonable amount of public service information such as a list of local hospitals, available local public transportation, and such other public service information as the parties mutually agree. Such information will be included on the Kiosks at no cost to City. Such information will be graphic-based and will not include video information. 2.05 Map of Convention Center. GHDVD will make available on the Kiosks a printable map of the Convention Center along with the Convention Center staff contact information. Such information will be included on the Kiosks at no cost to Fort Worth. 2.06 Advertising ees. GHDVD shall be responsible for all billing and collection of all advertising and production fees to advertisers on the Kiosks. 2.07 Insurance. A. GHDVD will secure and furnish City with a certificate of insurance for coverage and in an amount specified by standard policies and procedures of the Risk Management Department of the City during the term of this contract to include, at a minimum, the following: Commercial General Liability (CGL) $ 500,000 each occurrence $1,000,000 aggregate limit B. Coverage shall include but not be limited to the following: premises operations, independent contractors, products/completed operations, personal injury, and contractual liability. Insurance shall be provided on an occurrence basis, and be as comprehensive as the current Insurance Services Office (ISO) policy. C. The City of Fort Worth shall be named as an Additional Primary Insured in the body of the policy (s), or in an Addendum thereto. Said insurance shall provide coverage for the claims arising from the condition of the Leased Premises (Facilities) and the act(s) and omisions(s) of the officers, servants, or employees of the City. City reserves the right to review and adjust insurance requirements at any time during the term of this Agreement. UAM k AGREEMENT �___ PAGP5 Certificates of Insurance shall be delivered to the City of Fort Worth, 1000 Throckmorton Street, Fort worth, Texas 76102, evidencing all the required coverages, including endorsements. D. The insurers for all policies must be licensed/approved to do business in the State of Texas and have a minimum rating of A:VII in the current A.M. Best Key Rating Guide or have reasonably equivalent financial strength and solvency to the satisfaction of Risk Management. E. GHDVD hereby waives subrogation rights for loss or damage against City, its officers, agents and employees for personal injury (including death), property damage or any other loss. F. GHDVD shall not do or permit to be done anything in or upon any portion of the Premises, or bring or keep anything therein or thereupon which will in any way conflict with the conditions of any insurance policy upon the Premises or any part thereof, or in any way increase the rate of fire insurance upon the Premises or on property kept therein, or in any way obstruct or interfere with the right of the other tenants of the Premises, or injure or annoy them. G. The City may terminate this Agreement immediately upon the failure of GHDVD to provide acceptable documentation of insurance as required by this Agreement. 2.08 Indemnification. GHDVD AGREES TO DEFEND, INDEMNIFY AND HOLD THE CITY, ITS OFFICERS, AGENTS SERVANTS AND EMPLOYEES, HARMLESS AGAINST ANY AND ALL CLAIMS, LAWSUITS, ACTIONS, COSTS AND EXPENSES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY DAMA GE OR L OSS (INCL UDING ALLEGED DAMA GE OR L OSS TO O WNER'S BUSINESS AND ANY RESULTING LOST PROFITS) AND/OR PERSONAL INJUR Y, INCL UDING DEA TH, THA T MA Y RELA TE TO, ARISE OUT OF OR BE OCCASIONED BY (i) GHDVD'S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS AGREEMENT OR (ii) ANY NEGLIGENT ACT OR OMISSION OR INTENTIONAL MISCONDUCT OF GHDVD, ITS OFFICERS, AGENTS, ASSOCIATES, EMPLOYEES, CONTRACTORS (OTHER THAN THE CITY) OR SUBCONTRACTORS, RELATED TO THE TERMS OF THIS AGREEMENT OR THE PERFORMANCE OF THIS AGREEMENT, EXCEPT THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL NOT APPLY TO ANY LIABILITY RESULTING FROM THE SOLE NEGLIGENCE OF THE CITY OR ITS OFFICERS, AGENTS, EMPLOYEES OR SEPARATE CONTRACTORS, AND IN THE EVENT OF JOINT AND CONCURRENT NEGLIGENCE OF BOTH GHDVD AND CITY, RESPONSIBILITY, IF ANY, SHALL BE APPORTIONED COMPARATIVELY IN ACCORDANCE H THE LA WS OF THE STATE OF TEXAS. AGREEMENT Article III 3.01 Fee to City. In exchange for the space and services to be provided by City hereunder, GHDVD shall pay to City ten percent (10%) of its Net Profit, as defined below, from the operation of the Kiosks for the prior month on or before the fifth (5`h) day of each succeeding month during the term of the Agreement. Net Profit shall be defined as the Earned Revenue, as defined below, attributable to the Kiosks placed in the Convention Center Locations less Operating Expenses. Revenue shall be defined as the gross revenues collected by GHDVD directly attributable to the Kiosks. Earned Revenue shall be defined as the Revenue attributable to the Kiosks that is attributable to the particular month of operation of the Kiosks. Revenue received by GHDVD for advertising services attributable to future months shall not be included in Earned Revenue hereunder, until the month for which such Revenue is attributable for advertising services to be displayed on the Kiosks. Operating Expenses shall be defined to include all expenses directly attributable to the development, construction, placement, maintenance and operation of the Kiosks incurred by GHDVD plus a reasonable allocation of GHDVD overhead and the legal and accounting expenses attributable to the Kiosks and the preparation and administration of this Agreement. In any month that Operating Expenses exceed Earned Revenue, the amount by which the Operating Expenses exceed Earned Revenue shall automatically carry forward from month to month to be applied against the next month's Earned Revenue until such time as the Earned Revenue exceeds the Operating Expenses for that month. 3.02 Temporary Waiver of Fee. Notwithstanding anything contained in Section 3.01 to the contrary, in consideration of the substantial start-up expenses and development costs to be incurred by GHDVD, City agrees to waive its rights to receive ten percent (10%) of the Net Profit attributable to the Kiosks during the Initial Term (as defined below). Article IV Term and Termination 4.01 Feasibility Period and Initial Term. GHDVD shall have a six (6) month period beginning on the date of execution of this Agreement in which to market and pre-sell advertising for the Kiosks as well as for the production and post production work on the advertisements and the construction and programming of the Kiosks (the "Feasibility Period"). During this period, GHDVD will make a determination as to the viability of placing Kiosks in the Convention Center Locations. At any time during the Feasibility Period, GHDVD or the City may terminate this Agreement in its sole and absolute discretion. If this Agreement is not terminated prior to the expiration of the Feasibility Period, this Agreement will automatically continue for twelve (12) additional months (the "Initial Term") during which the Kiosks will be placed in the Convention Center and both parties will evaluate the effectiveness of the Kiosks. Either party may terminate the Agreement upon the expiration of the Initial Term by giving the other party written notice of termination at least thirty (30) days prior to the expiration of the Initial Term. is AGREEMENT L ?Y,-jt`0V` a1py`L�s 4.02 Renewal. After the Initial Term has ended, this agreement may be extended for (2) one year periods by mutual written agreement of GHDVD and City. GHDVD shall request each one-year extension at least ninety (90) days in advance of the expiration of this agreement. 4.03 Termination for Cause. Notwithstanding the above, either party may terminate this Agreement if the other party is in breach of this Agreement and fails to cure same after thirty (30) days written notice. 4.04 Force Majeure. If the FWCC or any portion thereof shall be destroyed or damaged by fire or other calamity so as to prevent the use of the Premises for the purposes and during the periods specified in this Agreement or if the use of the Premises by Licensee shall be prevented by act of God, strike, lockout, material or labor restriction by any governmental authority, civil riot, flood, or any other like cause beyond the control of the City, then this contract shall terminate and GHDVD hereby waives any claim against City for damages by reason of such termination. Article V General Provisions 5.01 Exclusivity. During the Feasibility Period, Initial Term and the Renewal Term of this agreement, GHDVD shall have the exclusive right to provide interactive advertising and marketing Kiosks in the Convention Center. 5.02 Independent Contractor. The doctrine of respondeat superior shall not apply as between GHDVD and City and nothing contained in this Agreement shall be deemed to constitute City and GHDVD as partners or joint venturers with each other, nor shall the GHDVD be considered to be an agent, representative or employee of the City. GHDVD shall have the exclusive control of and the right to control its employees and the details of its operation on the Premises and shall be solely responsible for the acts and omissions of its officers, agents, employees, contractors and subcontractors. 5.03 Notice. Any notice under this Agreement must be in writing and delivered by personal delivery, overnight courier, or certified mail, return receipt requested, and shall be deemed given upon personal delivery, one (1) business day after deposit with an overnight courier or five (5) days after deposit in the United States Mail as set forth above. Notices must be sent to a party at its address as set forth below or such other address as the party may specify in writing by notice pursuant to this section. Gotta Have DVD, Inc. 400 East Royal Lane Suite 2303 Dallas Communications Complex Irving, Texas 75039 AGREEMENT OXGE8 City of Fort Worth Fort Worth Convention Center Attn: Kirk Slaughter 1201 Houston Street Fort Worth, Texas 76102 5.04 Severability. Each of the provisions included in this Agreement is separate, distinct and severable from the other and remaining provisions of this Agreement, and the invalidity or unenforceability of any provision, shall not affect the validity or enforceability of any other provision or provisions hereunder. Further, if any provision is ruled invalid or unenforceable by a court of competent jurisdiction because of a conflict between such provision and any applicable law or public policy, such provision shall be redrawn to be valid and enforceable to the extent required for such provision to be consistent with such law or public policy. 5.05 Assignment. The parties hereto may not assign any rights or delegate any duties under the Agreement without the written consent of the other party. 5.06 Entire Agreement. This Agreement, together with the exhibits, constitute the entire agreement between the parties, and there are no representations, warranties, covenants and agreements between the parties other than those set forth or provided for herein, and any prior or contemporaneous oral or written agreement which purports to vary from the terms hereof, shall be void. 5.07 Amendment. This Agreement may not be amended or cancelled except by written instrument signed by all parties. 5.08 Governing Law. Venue shall be in the state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas, Fort Worth Division. 5.09 Intellectual Property. All designs, implementation, Kiosks, intellectual property, computers, programs, and trademarks owned and supplied or developed by GHDVD pursuant to this Agreement shall remain the sole property of GHDVD and nothing herein shall be construed as granting City any rights or interests in such items. 5.10 Authority. Each party hereto represents and warrants that it has valid authority to execute this Agreement and has obtained all necessary authorizations to undertake the obligations contained in this Agreement. 5.11 Rule of the Construction. The parties hereto acknowledge that each party and its legal counsel have reviewed this Agreement, and the parties hereby agree that normal rules of construction to the effect that any ambiguities are to be resolved against the drafting party, shall not be employed in the interpretation of this Agreement, or any amendments or exhibits thereto. AGREEMENT 5.12 CounteMarts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument, and in making proof hereof, it shall not be necessary to produce or account for more than one such counterpart. EXECUTED on this the day of , 2004 ATTEST: CITY OF FORT WORTH pm' L By: all, it Secretary �Asstt��Manager Approved as to form and legality: By. Gu- Ass'stan City Attorney GO A HAVE DVD, INC. ':ontract Authorization Sondra Brunone, President Date STATE OF TEXAS COUNTY OF TARRANT BEFORE ME, the undersigned au'uhority�, a Notary Public in and for the State of Texas, on this day personally appeared te_ , Assistant City Manager, know to me to be the person whose name is su scribe to the foregoing instrument, and acknowledged to me that the same was the act of the City of Fort Worth and that he executed the same as the act of the said City of Fort Worth for the purposes and consideration therein expressed and in the capacity therein stated. Gi V EIN UNDER MY HAND AND SEAL OF OFFICE, this the �_ day of �U , 2004. Notary Public in and for the State of Texas jR� W 1KAREN ED=FISHENotary Publ'S= My Commission L 9,....AGREEMENT May PAGE 10 STATE OF TEXAS COUNTY OF TARRANT BEFORE ME, the undersigned authority a Notary Public in and for the State of Texas, on this day personally appeared sor�y-c', ►10 , authorized representative for Gotta Have DVD, Inc. know to me to be the person whose name is subscribe to the foregoing instrument, and acknowledged to me that the same was the act of Gotta Have DVD, Inc. and that he executed the same as the act of the said Gotta Have DVD, Inc. for the purposes and consideration therein expressed and in the capacity therein stated. I,, GIVEN UNDER MY HAND AND SEAL 9f OFFICE, this the 0 day of 2004. (�—Zo cz� Notary Public in and for the State of Texas c"Sky PiB<, SHARON ESCOBAR NOTARY PUBLIC STATE OF TEXAS of +e My Comm.Exp.10-17-2007 AGREEMENT PAGE 11